The Supreme Court’s recent decisions in Trump v. Slaughter and Trump v. Cook have understandably been read as cases about presidential control over executive officers. But they may have implications for a different and largely overlooked question lurking in a pending Supreme Court case: Who may exercise the judicial power of the United States in the territories?
This question made a cameo appearance in the Slaughter case. The majority noted in a footnote that “a justice of the peace in the District of Columbia” exercises “the judicial power of the District, just as territorial judges exercise the judicial power of their respective territories” — not the executive power. Therefore, the court went on, “the fact that Congress may prohibit the President from firing the District’s judges (who do not exercise his power) says nothing about whether Congress may prohibit the President from firing his subordinates (who do).”
This brief language addresses an important issue underlying multiple recently denied certiorari petitions — and one the Court has the opportunity to address in the recently granted case Department of the Air Force v. Prutehi Guahan. Where do territorial courts fall in our constitutional framework? Slaughter appears to foreclose the idea that territorial courts fall within the executive branch and that the president may remove their judges. But a closer examination of history and precedent reveals the answer is not so clear cut.
The Territorial Courts Exception to Article III
The Court held nearly 200 years ago in American Insurance Company v. Canter that Congress may constitutionally withhold Article III protections — such as life tenure during good behavior — from judges serving in territorial courts.
Canter concerned Congress’s establishment of four-year fixed terms for judges in Florida, which was then a territory. To uphold the terms, the Court announced a territorial-courts exception to Article III’s protections. It analogized Congress’s powers under the Territorial Clause to the power of a state to structure its state government: Because Article III extends only to courts exercising the “judicial power of the United States,” the Court explained, both territorial and state judges exercising the judicial power of a state are not required to have life tenure even if they may hear federal claims.
The Court also noted that the Florida territory was destined for eventual statehood. Conferring lifetime tenure on the judges of Florida’s territorial courts would saddle the future state with a cadre of territory-era holdover judges holding life tenure on their state courts, the Court said. This would not only interfere with the state’s ability to determine the length of judicial terms but would effectively allow the president to pack the courts of newly admitted states and potentially influence state law for decades.
But Canter left a significant question unresolved: What happens if Congress or a territorial legislature modifies the jurisdiction of a territorial court so that it ceases to be a hybrid court and exercises only the judicial power of the United States — nothing more and nothing less?
To understand why this question matters, we must revisit the reasons the framers mandated that federal judges serve without term limits in the first place: to insulate them from the president and Congress. As the Court put it in Stern v. Marshall, life tenure allows federal judges to issue decisions “with the clear heads and honest hearts deemed essential to good judges” and not with “an eye toward currying favor” to keep their jobs. It follows that, in order to ensure only truly independent judges are making decisions in which the president or Congress might have an interest, only judges who possess Article III protections may generally exercise the “judicial power of the United States.”
For that reason, the Court held in Stern that limited-term bankruptcy judges cannot enter final judgments on state law counterclaims, in Glidden Company v. Zdanok that judges of the former Courts of Claims and Customs Appeals were required to receive Article III protections, and that executive branch officials such as those in the Securities and Exchange Commission cannot exercise the judicial power of the United States. And in the context of the territories, the Court deemed it error in Nguyen v. United States for a judge of the District Court for the Northern Mariana Islands to sit by designation on a panel of the U.S. Court of Appeals for the Ninth Circuit. Notably, the Court in Nguyen deemed the error so serious that it heard it for the first time on certiorari, establishing a rare exception to the principle that it is “a court of review, not of first view.”
The district judge in Prutehi Guahan decided statutory questions involving environmental review under the Administrative Procedure Act and the Resource Conservation and Recovery Act — in which the president could have a preferred outcome, as explained further below. But the underlying case comes from the District Court of Guam, a court that is structurally identical to that at issue in Nyugen. The court’s one judge falls under Canter’s territorial-courts exception: She exercises the full jurisdiction of a district court of the United States yet does not enjoy Article III tenure. Instead, according to a federal statute, the judge serves a renewable 10-year term and may be removed by the president “for cause.”
As the U.S. Supreme Court prepares to hear the case, overlooked is the threshold question of whether the District Court of Guam could constitutionally hear the Prutehi Guahan case in the first place.
The Creation and Evolution of the District Court of Guam
Until recently, this was a purely academic matter. Territorial governments were generally ephemeral and short-lived. While Congress established Article III federal district courts in the states to exist alongside state courts, in nearly all cases only one territorial court system existed in each territory. And after admission to statehood, Congress would often dissolve the territorial courts, create Article III federal district courts in the new state, and provide for the transfer of pending cases from the former territorial court to the newly created federal and state courts.
This process began to break down in the late 19th century, when the United States acquired former Spanish colonies such as Guam and Puerto Rico as spoils of war. The unabashedly racist views of the political and legal elites of the time influenced the Supreme Court to create, in the Insular Cases, the so-called territorial incorporation doctrine. The doctrine has allowed the federal government to hold them as territories for more than 125 years with no clear path to statehood. But evolving views on racial equality as well as greater fidelity to the text of the Constitution have undercut the legitimacy of the Insular Cases. And Congress has since authorized all five inhabited U.S. territories to govern themselves with their own court systems, established by their territorial constitution or similar governing document.
Congress created the District Court of Guam in 1950 as a hybrid court with “the jurisdiction of a district court of the United States in all causes arising under the Constitution, treaties, and laws of the United States” and “original jurisdiction in all other causes in Guam, jurisdiction over which has not been transferred by the legislature to other court or courts established by it” as well as “appellate jurisdiction” over such courts created by the Guam legislature. Its judge would be nominated by the president with the advice and consent of the Senate, but would only “hold office for the term of four years and until his successor is chosen and qualified unless sooner removed by the President for cause.”
As the Supreme Court noted in Guam v. Olsen, legislative history reflects that Congress created a hybrid court rather than a true Article III federal district court in 1950 due to “concern that there would not be sufficient federal question litigation to justify a separate district court in Guam” in addition to a territorial court system. But three decades later, the Guam legislature exercised its authority to create a territorial trial court, the Superior Court of Guam, which divested the district court of the entirety of its original jurisdiction over territorial law. Nevertheless, the district court even then remained a hybrid court: It could hear federal question cases — but did not have diversity or bankruptcy jurisdiction — and it retained appellate jurisdiction to review decisions of the Guam Superior Court.
Then, in 1984, Congress conferred the district court with the full jurisdiction of an Article III federal district court. It also authorized the Guam legislature to create a local appellate court which, once established, would divest the district court of its appellate jurisdiction over the territorial trial court. The legislature did so in 1992; the Supreme Court of Guam now serves as the territory’s equivalent of a state court of last resort.
The result is a court that possesses the entire jurisdiction of a district court of the United States — exactly like an Article III judge. Yet its judge lacks the tenure and compensation protections of Article III and continues to serve a limited term and remains statutorily subject to unilateral removal by the president.
The Article III Problem in Prutehi Guahan
The Prutehi Guahan case clearly illustrates the danger in vesting the Article III federal judicial power in a judge who lacks Article III protection. The judge assigned to the case, Frances Tydingco-Gatewood, was nominated by President George W. Bush and confirmed by the Senate in 2006. Although her initial 10-year term expired on August 4, 2016, she remains in office under a holdover provision allowing an incumbent judge to continue to serve until nomination and confirmation of a successor.
Her continued service has been a political football across three presidential administrations. President Barack Obama renominated her for a second 10-year term in the final year of his presidency, but Congress returned the nomination when it adjourned sine die. Then, in the final months of his first non-consecutive term, President Donald Trump attempted to replace her by nominating Guam trial court judge Maria Cenzon to the position. However, the Senate did not confirm Cenzon before President Joe Biden assumed office. Guam Gov. Lourdes “Lou” Aflague Leon Guerrero publicly lobbied Biden to withdraw the Cenzon nomination and to renominate Judge Tydingco-Gatewood. While Biden withdrew Cenzon, he did not immediately announce a new nominee.
Three months later, the Biden administration filed the permit application with the Guam Environmental Protection Agency (overseen by Guerrero) seeking to detonate hazardous waste on Tarague Beach in Guam. This application is the subject of the Prutehi Guahan case, in which Tydingco-Gatewood granted the United States’ motion to dismiss — a decision the Ninth Circuit would later reverse. Biden later renominated Tydingco-Gatewood to her position. But as with prior nominations to the position, the Senate did not act on it due to its late timing. Since commencing his second non-consecutive term, Trump has neither renominated her nor submitted any other nominee to serve on the district court.
There is no evidence that Tydingco-Gatewood dismissed the complaint to curry favor with either Biden or Guerrero. But that is not the point. Article III does not require proof that a judge has acted improperly before its protections matter. It reflects a structural judgment that federal judicial independence should not depend on the character, courage, or self-awareness of any individual judge.
Had Tydingco-Gatewood’s 2006 confirmation conferred Article III tenure, there would be no need for her to seek reappointment, no presidential decision to await, and no occasion for litigants or the public to wonder whether a politically sensitive ruling might bear on her continued service. That is the value of Article III. It makes independence ordinary rather than heroic.
Prutehi Guahan therefore presents more than a dispute over environmental or administrative law. It arrives at the Court from a tribunal that now exercises the jurisdiction of a federal district court, but whose judge does not receive the protections constitutionally required for the exercise of federal judicial power. And under its Nguyen precedent, the Court could — and should — address this structural problem even if the parties did not. The Virgin Islands Bar Association, however, filed an amicus curiae brief bringing the issue to the Court’s attention.
To do so, the Court need not overrule the Insular Cases, reexamine Canter, or resolve every question about territorial courts. Rather, a straightforward application of past precedent, including Slaughter, Stern, and Glidden, would allow the Court to sever and hold unconstitutional the statutory language providing for a 10-year term and presidential removal and hold that the subsequent amendments to its jurisdiction converted the District Court of Guam to an Article III court. At a minimum, the Court could dismiss the writ as improvidently granted or vacate and remand the case, sending it back to the Ninth Circuit for reconsideration in light of Slaughter.
Regardless of how it does it, the Supreme Court should not pretend this issue does not exist. Slaughter reminds us that territorial judges have historically been treated differently because they do not exercise the judicial power of the United States. Cook reminds us that even for-cause protections allow for unilateral presidential removal so long as minimum due process standards are met. For litigants in Guam, the Virgin Islands, and the Northern Mariana Islands, judicial independence should not depend on geography. If a court exercises the judicial power of the United States, the Constitution requires that its judges receive the protections of Article III — and the Supreme Court should take this rare opportunity to effectuate that promise.
Where Do Territorial Courts Fall in Our Constitutional Framework? was first published by State Court Report and republished with permission.
Anthony M. Ciolli is practicing faculty at St. Mary’s University School of Law. He was formerly the president of the Virgin Islands Bar Association and serves as special assistant to the Chief Justice of the Virgin Islands. The views expressed herein are solely his own and not those of the judicial branch of the Virgin Islands, the Virgin Islands Bar Association, or any of their officers or employees.
